Marijuana board chair explains resignation after change in US policy

Nick Miller, Mark Springer, Brandon Emmett, Loren Jones and former chairman Peter Mlynarik are seen at a meeting in September 2016. Mlynarik, who is also the Soldotna Chief of Police, resigned Jan. 4 after U.S. Attorney General rescinded previous enforcement guidance that allowed states to regulate recreational marijuana. (Photo/File/AJOC)

The Alaska Marijuana Control Board will still consider license applications at its next meeting but could be one member short after the Jan. 4 resignation of chairman and Soldotna Chief of Police Peter Mlynarik.

The Alcohol and Marijuana Control Office, or AMCO, will continue to process license applications for new cannabis businesses, according to a release from the agency issued Friday morning.

Those scheduled to have their applications considered at the Jan. 24-26 meeting will need to be available to answer the board’s questions as usual, meaning the status quo will hold after U.S. Attorney General Jeff Sessions rescinded the “Cole Memo” issued in 2013 that established a federal policy of non-interference in marijuana operations legalized at the state level as long as federal priorities were followed such as keeping drugs out of the hands of minors and protecting against involvement by criminal elements.

Mlynarik’s resignation was effective immediately and vice chair Mark Springer of Bethel, who holds the seat designated for rural Alaska, will be the acting chair until a full five-member board chooses its chairman after a replacement is named by Gov. Bill Walker.

A 14-day application period is open until Jan. 18 for applicants who want to fill the vacant seat. Anyone with a background in public safety is encouraged to apply, said Austin Baird, the governor’s spokesperson. This gives another week for the governor to name an appointment, if he choses to do so, by the next board meeting.

The Sessions action on Jan. 4 proved to be the tipping point for Mlynarik, who held the public safety seat and served on the Marijuana Control Board since its formation in the summer of 2015.

“When the memo was rescinded by Jeff Sessions, I felt that is what legitimized the states to go with legal marijuana, and when that was removed, it pushed me over the edge,” Mlynarik said Jan. 5. “As a member of law enforcement, I couldn’t go with that.”

Mlynarik served 22 years as an Alaska State Trooper, including as a detachment commander, prior to being hired as police chief by Soldotna in 2012. He said he’s always been in a position that upholding laws isn’t distinguished between whether they are federal and state laws.

“You are still responsible for public safety. I’m not going to go contrary to the federal government and what their intent may be. If changes weren’t ahead, memos would have stayed in place. It’s no secret that AG Sessions is no fan of marijuana,” Mlynarik told the Journal.

Inconsistent testing

Another source of concern for Mlyarnik was a conclusion he reached after an unscheduled Jan. 2 board meeting that was called to discuss the proper response to emerging issues with product testing.

The board debated for 45 minutes on what to do after receiving problematic news on inconsistencies at the state’s only two commercial testing labs. In one example, the labs differed by more than 4 milligrams on an edible product, which are limited to 5 milligrams of THC per serving by state regulation.

Yet more troubling, Mlynarik said, was the dangerous Aspergillus mold detected during testing at one lab. That the same sample, tested at the other facility, failed to spot the mold.

The board broached the topic of whether to shut businesses down until resolving the testing issue or to issue a consumer alert, and it ultimately voted unanimously to issue the alert.

“I felt more should be done,” Mlynarik said. “Having labs that are accurate and what is given to the public is more important, and I felt it deserved a more proper response than a committee to look into it when the amounts of THC aren’t known and there’s mold in their products.”

Mlynarik thought the board should halt the entire marijuana industry until they figure out how to obtain accurate tests.

“(Cannabis) probably shouldn’t be allowed to continue to be tested through there. In my opinion, it was a public welfare issue, and we should put that first rather than the industry. It’s not the intent to hurt the industry, but the main reason is to protect the public,” he said.

If the state’s marijuana businesses were shut down, he said, “you would get answers more quickly. If there’s no exigency, then who knows how long it will take?”

Mlynarik’s said his overall experience on the board was satisfying. He volunteered to serve on the board after Alaskans approved marijuana for recreational use in a 2014 ballot initiative.

“I wanted to be involved because I felt it was necessary to have a voice in the public’s safety and welfare on the marijuana board,” he said.

But Mlyarnik’s dual role in law enforcement and as a rule-maker for the marijuana industry didn’t always sit well.

When he helped push a petition on the October 2017 ballot that would have banned marijuana businesses outside the Kenai Peninsula Borough, it upset Soldotna and Kenai owners whose licenses had been approved while Mlynarik served on the board. The ban, if voted in, would have put them out of business.

Tina Smith, owner of a marijuana education business called Midnight Greenery, testified to the board in November that the affirmative votes opposing proposed bans in Fairbanks and the Kenai Peninsula Boroughs spoke “loudly” in favor of the industry.

Smith complained trust was eroded when Mlynarik “spent time trying to prohibit the industry instead of solidifying the public’s safety, as you were chosen to do.”

In an email to the Journal, Smith wrote that she feels like “he is jumping ship, one that he never wanted to be on once it actually started to be a success.”

What’s next for the MCB?

The Alcohol and Marijuana Control Office issued a statement a day after Sessions’ decision to address industry concerns, but the office won’t be able to answer legal questions.

Micaela Fowler, special assistant with the Department of Commerce, Community and Economic Development said AMCO is issuing this public statement to all business owners: “(We) cannot provide legal advice to applicants or licensees, nor can we advise whether you should continue your application or alter your business practices. The Department of Law is still working to evaluate what the impact of rescinding the Cole memorandum will be for Alaska.

“AMCO will continue to implement state law in close conjunction with the Department of Law, and as new information is available, will make every effort to inform licensees and the public.”

A significant number of new license applications are already being poured over by the board for the Jan. 24-26 meeting in Juneau, Springer said. They will continue to process those, he added, and work on regulation projects such as onsite-consumption.

But the biggest issue is the testing inconsistencies.

“We’re going to ride that pretty hard,” Springer said. “I completely respect (Mlynarik’s) decision and I understand his reasons. I think it says a lot for his personal and professional integrity that he would chose to resign in the face of the removal of the Cole Memorandum. He’s also concerned about testing inconsistencies.”

The next new board member will also come from the public safety sector. But that doesn’t mean it has to be a police officer, Springer said. The member could come from the Department of Corrections or a local fire department, for instance.

“But I don’t think any other law enforcement officers would argue with Chief Mlynarik’s reasons for resigning,” Springer said.

The professional conflict Mlynarik felt “was always one of the mines he was stepping over. “

Almost every meeting, Mlynarik would remind everyone in the room: “‘Look we are dealing with something that is still federally illegal,’” Springer said.

But Springer said he feels no such conflict. He watched the back and forth of news debates after Sessions’ announcement.

“What he issued was strictly a prosecutorial guide to U.S. attorneys,” Springer said.

Nevertheless, Springer and other board members said they will miss the Soldotna police chief.

“He was fair to all comers,” Springer said. “Careful on applications. Asked good questions. Voted yes more than no. I will miss him very much.”